Warren Hastings's Judicial Plan of 1772

The chief courts at Calcutta. Above them sat the Sadar Diwani Adalat, the chief civil court, consisting of the President and two members of Council, hearing appeals from the district civil courts in suits above a fixed value; and the Sadar Nizamat Adalat, the chief criminal court, nominally under an Indian judge, the daroga-i-adalat, with the kazi and muftis, but in fact supervised by the Governor and Council.

Notice what that means. The executive government of Bengal was the highest court of Bengal, on both sides. The Governor and his Council collected the revenue, governed the provinces, and sat as the final civil and criminal court. It is the arrangement of the Presidency Towns after 1726 repeated across three provinces, and Parliament would find it as unacceptable here as there.

The rule about personal law

The most durable single provision of the plan is the rule that in suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran were to be applied to Muslims and those of the Shastra to Hindus.

Three things follow from it and are worth stating separately.

1. It is the origin of the personal laws as a category of Indian law. The idea that some subjects are governed by the law of the party's religion, and the list of what those subjects are, begins here as an administrative instruction.
2. It answered, for the mofussil, exactly the complaint the Presidency Towns had made about the Charter of 1726: that English law was being applied to people who had never heard of it.
3. It made the pandit and the kazi necessary. An English Collector could not find the law of the Shastra for himself, so the court had to contain somebody who could, and the law officers sat with the judge for that purpose. That arrangement lasted until the courts had enough translated texts and reported decisions to do without them.

A worked example

Ramkanta, a Hindu of the Burdwan district, dies in 1773. His widow and his nephew both claim the estate.

1. The suit goes to the Mofussil Diwani Adalat of Burdwan, because it is a civil suit and it arises in that district.
2. The Collector presides. The suit concerns inheritance, so the applicable law is the law of the Shastra, and the pandit attached to the court expounds it. The Collector decides according to that exposition.
3. If the value exceeds the appealable limit, the losing party appeals to the Sadar Diwani Adalat at Calcutta, where the President and two members of Council sit.
4. If the same Ramkanta had been murdered, the trial would have been in the Mofussil Faujdari Adalat, under Muslim criminal law, and a sentence of death would have gone to the Sadar Nizamat Adalat for confirmation.

Now notice the difficulty that is already visible. The Collector who decides the inheritance suit is also the officer collecting the revenue from the same estate, and the Company has an interest in who holds it. Nobody in 1772 pretended otherwise, and Cornwallis would spend the 1790s trying to separate the two functions.

Distinctions worth having straight

What beginners get wrong

"The plan of 1772 was made by Parliament." It was made by the President and Council of Bengal, under the Company's own legislative power. Parliament's first intervention is the Regulating Act of the following year, and it changed much of what Hastings had built.

"The Sadar Diwani Adalat was a court of judges." It was the Governor and two members of his Council. The first time a professional judge sat in it as such is much later.

"Hastings introduced English law into the districts." He did the reverse in the matters the plan lists: Muslim law for Muslims and Hindu law for Hindus in inheritance, marriage, caste and religious usage. Outside those matters the courts decided by usage, custom and what they thought equitable, which is the origin of the phrase "justice, equity and good conscience" in later Indian statutes.

"The plan lasted." It did not survive three years intact. The Regulating Act arrived in 1773, the new Councillors arrived in 1774 and outvoted Hastings, and the plan was substantially altered in 1774 and again in 1780. That is the next chapter.

Limits and criticism

The plan has one structural defect and one practical one, and the paper usually asks about both.

Structurally, it put the Collector at the head of the civil court of his own district and the Governor in Council at the head of both chief courts. Revenue and justice were in the same hands at every level, from the district to Calcutta. A litigant who complained of the Company's revenue administration was complaining to the Company's revenue administration.

Practically, it was built by a government whose own composition Parliament was about to change. Hastings's plan assumed a Governor with authority over his Council; the Regulating Act gave him a Council that could and did outvote him. A plan of administration is only as durable as the administration that made it.

What survives is larger than what failed: the four-court structure, the vocabulary, and above all the personal-law rule, which is with us still.

Quick revision

• Made in 1772 by the President and Council of Bengal, not by Parliament, after the Directors resolved that the Company should "stand forth as Diwan".
• District: Mofussil Diwani Adalat (civil, under the Collector, with kazi, mufti and pandit) and Mofussil Faujdari Adalat (criminal, Muslim criminal law).
• Calcutta: Sadar Diwani Adalat (President and two members of Council) and Sadar Nizamat Adalat (criminal, in fact under the Governor and Council).
• Death and forfeiture sentences required confirmation by the Sadar Nizamat Adalat.
• The personal-law rule: in inheritance, marriage, caste and other religious usages and institutions, the Koran for Muslims and the Shastra for Hindus.
• Defect: revenue and justice in the same hands at every level.

Test yourself

1. Name the four courts of the 1772 plan and say what each did. Mofussil Diwani Adalat, the district civil court under the Collector; Mofussil Faujdari Adalat, the district criminal court under Indian law officers; Sadar Diwani Adalat, the chief civil court at Calcutta consisting of the President and two members of Council; and Sadar Nizamat Adalat, the chief criminal court, nominally under an Indian judge but supervised by the Governor and Council.

2. State the personal-law rule of 1772 and say why it matters. That in suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran were to be applied to Muslims and those of the Shastra to Hindus. It matters because it is the origin of the personal laws as a category of Indian law and because it answered, for the districts, the complaint that English law was being applied to people governed by their own.

3. Why did the plan need pandits and kazis on the bench? Because the presiding officer was an English Collector who could not ascertain Hindu or Muslim law for himself, and the plan required that law to be applied in the listed matters. The law officers expounded it and the judge decided on their exposition.

4. Give the one criticism of the 1772 plan that the later history proves. That it united revenue collection and civil justice in the same officer, and executive government and the highest courts in the same body. Cornwallis separated them in 1793 precisely because of it, and the Regulating Act of 1773 was passed because Parliament would not accept a Governor in Council as a criminal court.